No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States.
-- George Washington

Saturday, January 23, 2010

Was the Supreme Court's Decision a Victory for Free Speech, Or Did It Do Damage?

I'm not sold either way just yet. Though I lean towards thinking that if the government had less influence over the economy, then business would have less interest in wasting money trying to buy off government.

On Thursday, the Court overruled that earlier case and also part of a 2003 case involving BCRA, finding the earlier anti-distortion rationale to be “unconvincing and insufficient” to justify government censorship of political speech. Instead, the Court noted that ordinary people often need to pool their money into an organization they support, to use those pooled funds to get their message out about the issues they care about when elections are approaching. Rather than drown out the little guy, this option allows groups, be they Citizens United, the National Rifle Association, or the Family Research Council, to be a megaphone for the little guy, informing the voters of what’s at stake.

If this argument holds water, then the Court's decision would be seen as a victory for free speech, no?

Suppose that a company or a union can't take out radio or television ads supporting a candidate. It still has other options: It can produce a critical movie, such as "Hillary: The Movie," or publish a critical book. Authors making the rounds of radio and television shows during their book tours can help provide information that supports one candidate over another.

Indeed, when President Obama's Deputy Solicitor General, Malcolm Stewart, first argued the case "Hillary: The Movie" before the Supreme Court last March, Justice Samuel Alito asked him if the government could prohibit companies from publishing books. Stewart said that was indeed possible. "That's pretty incredible," Alito responded, and then he pointed out that most book publishers are corporations.

"If [the book] has one name, one use of a candidate’s name, it could be covered?” Chief Justice John Roberts then asked. And Stewart replied: “That’s correct.” “It’s a 500-page book, and at the end it says, so vote for X. The government could ban that?” Roberts asked. Again, Stewart said yes.

This makes it sound as though it's just another attempt to get rid of the Glenn Becks and Ann Coulters of the publishing world, who also just so happen to dominate the best seller lists. But perhaps more sinister is the realization that the law gives the government considerable power in determining what is "proper" political speech. And that's not something that either the Left or Right should be approving of.

3 comments:

The issue is not free speech, but the definition of a person or a citizen. Certainly when ordinary citizens band together to form an organization to get out their message, that's an exercise of free speech and assembly. A corporation, however is not an ordinary citizen, nor is it a citizen at all.

A corporation is a legal entity, chartered by a state or states. It's shareholders are persons, it's employee's are persons and its directors are persons, but it is not a person. A corporation is not a free assembly of individuals either. Extending the rights of citizens to a state-created entity means that you have the same rights as Exxon-Mobil and you and it compete on a level playing field - good luck with that.

The court went far beyond the confines of the case presented and ignored centuries of precedent in making this ruling. It is exactly the sort of judicial activism and legislating from the bench that conservatives have railed against for years.

Certainly everyone left and right should support the preservation of free speech for all persons, but to treat a corporation as a person is ludicrous.

Your definition argument doesn't hold much water if we accept that groups of individuals banding together to form an organization (corporation) deserve free speech.

Take the issue that brought this to the Supreme Court in the first place. A group of individuals formed a corporation which made a movie about a politician. Under the old rules that movie was prevented from being released. The free speech of the people involved in that corporation was denied.

Also, the solicitor general testified to the Supreme Court that books could be banned under this rule as well. If that is the case, then for me that alone gives cause to overturn the law.

I understand the hesitation to allow corporations to influence politics, but those two examples seem to illustrate that the law was too broad. That in trying to prevent one bad thing they have caused harm to a very good thing.

There is a great deal of difference between the assembly of free persons protected by the Bill of Rights and a corporation. A corporation is not a group of individuals banding together, it is a legal entity shares in which can be sold to individuals who may then transfer them to others.

If the court had addressed the issues involved in the Citizens United case and restricted themselves to those issues, they would have come to a different conclusion. The issue was whether a film manufactured by an incorporated group was subject to the existing election law since it clearly was intended to convince viewers to vote in a specific way. The question was whether the movie was covered by the election law.

If you and Exxon Mobil have exactly the same rights to express your political opinions, contribute as much as you like to political campaigns and political parties, and lobby Congress, who will win every time?

The fact is that corporations are (or were when the Constitution was written) legal fictions chartered by the states for specific purposes. They can be (or should be) subject to dissolution in the event they fail to work within the restrictions put in their charters or if they repeatedly violate the law. If we want to consider them persons, then restrict them to seven score years and ten of life, and put them in jail when they commit crimes and execute them when they murder people.

IMHO, we can get around this by setting strict limits on the amount of money any individual or corporation can contribute to any political party or campaign in a given year - say $2000. Let's restrict corporations like Citizens United to a specific amount per individual member (say $1000) instead of letting them marshall gangs of $2 members with million-dollar corporate slush funds. Let's prohibit lobbyists from transferring anything of value to any legislator or federal official. If you and I are restricted to $2000 in total contributions and so is Lockheed Martin, then we might be getting somewhere.